Here's what they posted on Twitter (Facebook's post was almost identical):

The company's tweet links to a entertainment blogger's article on Heigl, not the Duane Reade website. Yet that distinction doesn't appear to matter to Heigl's attorneys who filed a $6 million lawsuit alleging the retailer "misused and misappropriated the photograph for its own commercial advertising, distributing the photo with Duane Reade's own promotional slogans on its Twitter and Facebook accounts, all without Ms. Heigl's knowledge or approval." That's more money than most companies have in their marketing budget.

Many people have been taking Heigl's side on the issue -- Duane Reade should have known better, they say. But I think any marketer could have easily been Duane Reade in this situation, and that this case may have long-term implications for how brands continue to use social media for marketing purposes.

Marketing Takeaways From Duane Reade's "Slip-Up"

It's easy to assume this situation is isolated. One big brand gets burned, they get sued, and life moves on. But not so fast -- there are two big questions that arise from this situation that any business should know the answer to.

1) Duane Reade probably didn't think they were doing anything wrong. Where's the line between social promotion and celebrity endorsements?

Since Duane Reade was posting a paparazzi photo taken in public and didn't link to any of their products, they probably thought the tweet was fair game. It wasn't like it was a photo of her taken in her house, or they linked to a specific product in the tweet. All it was saying is that Heigl also shops at Duane Reade (which she does, per the photo). Still, brands aren't protected the same way media outlets are when it comes to paparazzi photos.

And Duane Reade isn't some clueless company just posting on social media willy-nilly. They're featured in a Twitter case study, in fact. They probably assumed that because it was a photo featuring their company, it was fair game to share. So even if you're not directly promoting your products in your post, just the fact that it came from your account could land you in hot water.

2) $6 million for two social media posts? What's an endorsement worth, anyway?

Six million dollars seems like a lot for two social media posts, particularly when studies suggest the ROI for "average Joe" testimonials is potentially higher than it is for celebrity endorsements.

According to a study by Harvard Business Review, celebrity endorsements can give brands short-term benefits, but ultimately sales decrease with time. "Average joe" testimonials, on the other hand, helped one company increase sales by over 50%. While these two stats are pulled from fairly isolated situations, they can speak to the larger takeaway: Over time, it's usually more effective to get "endorsed" through reviews, testimonials, and case studies than have a celebrity using your product.

Regardless of whether you think Duane Reade or Heigl's in the right here, it's an interesting case study we can all learn from. In an age where brands are urged to become publishers, keep in mind that we may not always have the same legal protections as publishers. We should be absolutely vigilant about toeing the legal lines -- or we may end up throwing $6 million down the drain.

What do you think of this whole debacle? I'd love to hear your thoughts in the comments.

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Kent

Kathryn Heigl is a total hack of an actress. Duane Reade's real mistake was using someone who could use the money from a lawsuit.

Julie Henry

You know, it's interesting, just yesterday, I commented on Bravo's website about RHOA, NeNe Leakes, and how her "diva-esque" attitude is going to earn her a reputation as BAD as... YOU GUESSED IT!! Katherine Heigl!! Heigl can't get a decent acting job to save her life. It's a shame, because she is physically beautiful and a somewhat talented actor, BUT, she is TRUE biotch and NO ONE wants to work with her (have read this over and over from co-stars)... I guess she really DOES need the money (from a lawsuit), so she can keep buying boots to match her coats. The reality is that talent will only get you so far, a great work ethic COUPLED with talent AND a great ATTITUDE is what gets actors hired again and again... Heigl had her chance, and she blew it (from both Grey's Anatomy and several movies). The truth is that there are THOUSANDS and THOUSANDS of VERY talented actresses (actors), WHY should any production hire someone with such an attitude! At this point, she should be THRILLED that anyone even WANTED her photo... she doesn't have to clout to command the type of money she is suing for... Was Duane Reade wrong? Probably an error in judgement.... If a jury is forced to find for the 'law' of the matter and the law is clear.... fine, let her win. But pay her what her un-endorsed photo is worth: $5 bucks. Hey, if she doesn't have it, I'll give it to her. I'd say I'd LEND it.... but she's such a witch, I'd never got my money back. Most of the time I say, live and let live... give folks a second chance... but NOT with this woman.... from what her co-workers have said about her, I TOTALLY believe I'd never work with her, nor hire her.

Kent

Julie- I agree. She is physically beautiful. She probably would have been better off going after a career in modeling. She has no depth as an actress. She is who she is- and that's it. There are other actors, and actresses, that do well with little depth- but as you say- they probably have a better attitude. I can't help but compare Heigl to Charlize Theron whose beauty is similar- and yet she has blown me away time and again with her performances. "Monster" is an example of shear genius on Theron's part.

If you Google Heigl, most of the entries talk about her money problems and wonder if the reason that she can't get a job is because of her diva attitude. Maybe she's just hoping she can get a few bucks out of DR to tide her over?

Rick Roberge

Baloney! Kent beat me by 17 seconds!

Andy Terrance

Katherine Heigl is going to give any proceeds should she win to charity. So any argument about money is completely irrelevant. One of the main problems with the Tweet is their assertion that she "can't resist shopping" there. Who says? Perhaps it was the only drugs store nearby, perhaps she didnt really want to go there but had to. They are implying she endorses the store with her patronage when that might not be the case at all. Imagine if you happened to walk past the Westboro Baptist Church and they took your photo and put it on their web site saying you couldnt resist going there. You would probably be outraged given their extreme views. Companies and organizations just cant do that sort of thing without permission.

Regardless of how poor an actress she is, or how much she needs money, the person who made this decision at Duane Read made a poor one. It speaks to me of inexperience, no social media policy, and probably very little oversight. Anybody who's been in the communications business knows it is best practice to get photo releases, even from average joes no less "celebs." The lesson here is if you're using anyone else's likeness, think before you tweet.

I think that's a really great point, especially since Duane Reade might not have gotten in trouble if they just shared the link to the blogger's article, instead of sharing the article and the photo. The tweet still would have been a good one without the photo.

Kent

I agree absolutely, Mark. I was being a bit facetious. I've never forgiven Heigl for butchering the Stephanie Plum character. Anyway... always a release.

Danny Kastner

I endorse their strategy and think they should pat this person on the back. This is clearly a misguided lawsuit that will do Heigl NO GOOD and the brand tons of good. How many times will you get a chance where the brand sentiment vs. a celebrity is going to be way more positive. If they ran a poll, 80-90% would side with Duane Reed's right to tweet this.
More:
1) You can't compare to the White House event. Completely different.
2) Every brand on every occasion should not shy away from posting public shots that have their brand in them as long as they are just posting simple facts. "Oh wow, look, Lebron is eating Burger King. Howdya like that MickeyD's?"
3) In public celebrities are public access so she will easily lose this case. Clearly there's no implied endorsement here. Lebron's not stupid enough to sue in the fake example given above.
4) The PR windfall for Duane Reed is fabulous. They will ride this think to lawland and have a great time watching the company mentions fly through the roof!
Enjoy the internet...

I find this kind of crazy given that social media is everywhere and no one else would be able to bring this lawsuit if they were just an "average joe". The subjects of Arne Svenson's "Neighbors" exhibit couldn't even sue and he took actual photos of them IN THEIR APARTMENTS. I don't fault Duane Reade.

Social media can be a powerful marketing tool. But in some case social media sites can have a negative impact on your business. Many businesses simultaneously blast the exact same message across Facebook, Twitter, Google+, LinkedIn, etc.

Heigl's acting prowess (or lack thereof) aside, the trouble Duane Reade got into is indicative of a much larger issue we marketers face, which is what images and image sources are OK to use in our marketing efforts. For the protection of our clients and ourselves, I recently interviewed Sharon Toerek, a legal expert who works with marketing agencies and departments to navigate the legal issues associated with marketing and advertising. I jotted down the main takeaways from our conversation here—http://www.pr2020.com/blog/navigating-copyright-law-and-image-use.